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Deferred Action (“DACA”) and Adjustment of Status

November 18, 2015.  Several people we have spoken to over the last few weeks have inquired concerning their eligibility for Adjustment of Status based upon marriage to a U.S. Citizen if they have received Deferred Action for Child Arrivals (“DACA”). It has been widely discussed that DACA was not meant to be a “path to citizenship.” In some instances, however, it might be, but it is our interpretation that it is limited to those with particular circumstances.

We will start out discussing some concepts in immigration law. First, “Adjustment of Status” is the term for receiving legal permanent residence within the borders of the U.S. In order to be eligible for Adjustment of Status, the person must enter the U.S. legally, i.e., with inspection by a border officer. This is in distinction to “consular processing” where a person obtains legal permanent residency through an immigrant visa obtained outside the U.S. Those who entered without inspection are required to leave the U.S. in order to obtain an immigrant visa and are subject to a 10 year bar when they leave because they have been in the U.S. illegally for over 1 year (a waiver or the “provisional” waiver forgives this illegal presence; if someone elects to do consular processing by the use of the provisional waiver, they need not leave the U.S. for more than a day or two.) The issuance of DACA, in and of itself, is not an admission that can be used for adjustment of status and, therefore, consular processing with either a regular waiver or provisional waiver is a very good option if they have a U.S. citizen spouse. It is important to keep in mind that DACA is merely a directive from the President which permits those who meet its requirements to remain here with work authorization so that they can further their education as well as work, despite having entered illegally and was carefully crafted so as not to confer any status.

Therefore, as discussed above, people with an illegal entry in most instances cannot adjust status. One exception to the legal entry requirement, however, is the amnesty of 2001 where if someone filed an application for an applicant prior to April 30, 2001, they need only pay a $1,000 penalty and they can adjust status despite having entered the U.S. illegally. Therefore, this discussion applies to DACA recipients who (a) entered illegally; (b) are married to a U.S. citizen; (c) never had a work or family petition filed for them or a parent prior to April 30, 2001, and (d) after being here for their first year, did not leave and return to the U.S.

In order for DACA recipients to be eligible to adjust status, they must have obtained “advance parole” to leave the U.S. and, in fact, left the U.S. and returned. Advance parole is a process by which USCIS gives a person permission to re-enter the U.S. for specific reasons. And the entry upon returning creates the “admission” which is required for adjustment of status. USCIS will grant advance parole to people, however, only in limited circumstances enumerated on the website, including humanitarian reasons, i.e., visiting a sick relative, educational purposes, i.e., study-abroad program, or employment purposes, i.e., work conferences. See http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.

After the 2012 Board of Immigration Appeals decision, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 221, the Department of Homeland Security expressed its intent to adopt the rule that leaving the country pursuant to a grant of Advance Parole is not considered a “departure” which triggers the 3- and 10-year bar to re-entry. See, Memo, Jeh Johnson, Secretary, U.S. Dept. Of Homeland Security, “Directive to Provide Consistency Regarding Advance Parole” (Nov. 20, 2014). Therefore, DACA recipients who are granted parole into the U.S. after their travel abroad, who are beneficiaries of a visa petition, and a visa is immediately available, i.e., a U.S. citizen spouse petitioned for them, should be eligible to apply for residency while remaining in the U.S. without having to deal with this particular “bar” under the Immigration Act.

Conclusion.  It is our opinion that DACA recipients should use the advance parole process carefully. First, there must be a legitimate reason for requesting permission to leave the U.S. and not merely the intent to qualify for adjustment of status. Most importantly, it must be supported by sufficient documentation. Secondly, a person should not seek to use advance parole if he or she left and returned to the U.S. after having originally entered, i.e., you came to the U.S. twice or more. The reason for this is that the person could trigger a different and more strict 10 year bar (different from the one mentioned above) for having illegally remained in the U.S. for more than one year and then left and re-entered or attempted to re-enter. It is our experience that, even in this circumstance, USCIS may still issue an advance parole document and when you attempt to enter on it, U.S. Customs and Border Protection (“USCBP”), will deny entry for having violated this provision. It seems to make sense that USCIS would not issue the document if you are not entitled to return, but that is not the case.

It is important to note that most DACA recipients who are married to U.S. citizens also qualify for the provisional waiver and that should be considered as a good alternative if there are not legitimate reasons to leave the U.S.  Further, there may be questions from either USCIS or USCBP concerning one’s marital status.  If it is disclosed that one is married to a U.S. citizen, it is likely that the request for advance parole will be scrutinized carefully and, perhaps, denied. And, further, once the advance parole is granted by USCIS, you will also be scrutinized by USCBP upon entry, which has discretion to deny entry. It is possible that USCBP officers could inquire one’s intention to marry after entering the U.S. or whether one intends to adjust status after entering if already married, in which case, could form the basis for a denial of entry. We believe, therefore, that if one is married to a U.S. citizen and is a DACA recipient, one’s reasons for leaving the U.S. under advanced parole must be strong, along with sufficient supporting documentation. Further, if one is not yet married, one should refrain from marrying until after having left and returned on advance parole. In either case, if one’s reasons for leaving are weak, then either USCIS or USCBP will suspect an intent to avoid the immigration laws and will either deny the advance parole request or, worse, deny entry at the border once you have left.